Love As a Matter of Contract?

Legal claims against employers can arise out of a number of romantic (or not-so-romantic) scenarios. For example:

• An employee asserts a claim against an employer after his or her romantic relationship with a supervisor or co-worker ends, typically claiming that the relationship was coerced — a claim of quid pro quo harassment.
• An employee continues to make sexual advances towards a former partner in the workplace after the relationship ends. Here, courts have often found that a hostile work environment claim can prevail.
• An employee claims that a supervisor retaliated against him or her following the termination of a relationship. Interestingly enough, some courts have found that these types of claims are not viable because they are predicated on the termination of a relationship, not the plaintiff's gender.
• An employee claims that he or she has suffered an adverse employment action because a supervisor favored another employee with whom he or she had a romantic relationship. Like the retaliation claims previously discussed, courts have found that such “paramour” claims cannot succeed because they are based on the alleged favoritism, not the gender of the plaintiff. Note, however, that the Equal Employment Opportunity Commission has issued guidance to the effect that sexual favoritism can rise to the level of an actionable claim.
• A supervisor retaliates against an employee for complaining that the supervisor favors another employee with whom he or she has a romantic relationship. Beware: while, as noted, the employee may not have a claim on the basis of the favoritism itself, courts have repeatedly held that retaliation on the basis of a good-faith belief that discrimination is occurring is actionable.

Warding Off Claims

Employers have attempted a number of approaches to warding off sexual harassment claims on the basis of workplace romance. As noted, some employers adopt an outright prohibition on workplace romance. This “head-in-the-sand” approach is probably unwise: It is unrealistic, demoralizing to employees, and even potentially unlawful. (For example, some states have out-of-work activity statutes on the books, which generally prohibit employers from taking corrective or adverse action against employees for what they do on their own time. Some courts, too, have found that employers commit an actionable invasion of privacy when they penalize employees for dating.) More commonly, employers adopt a policy prohibiting non-platonic relationships between supervisors and their subordinates. While this approach may make more sense than a total ban, it is still likely to have a demoralizing effect and can still expose the employer to potential litigation.